Theodore Stevenson III
There's a new move for patent litigators doing the venue dance.
And lawyers at McKool Smith are busting it out for a patent holder that wants its suits against major tech firms and retailers grouped together and litigated in Texas.
After seeing some cases kicked out of the Eastern District of Texas and sent to the defendants' home jurisdictions in San Jose and New York, McKool Smith is vying to get its suits back in the Lone Star state, but this time designated as multidistrict litigation.
Lawyers for the 19 defendants are crying foul.
In a joint opposition brief, lawyers for Apple Inc., Amazon.com, Facebook Inc., Google Inc. and Yahoo Inc. argued that merging the matters brought by Droplets Inc. would circumvent provisions in the 2011 America Invents Act designed to clamp down on single lawsuits against multiple companies.
The dispute provides a case study in patent litigation post-AIA and signals that fights over venue will increasingly land in front of an MDL panel that hasn't traditionally seen many patent cases.
In its most recent session, the Judicial Panel on Multidistrict Litigation considered Droplets' request to move its cases to a single judge in Dallas. McKool Smith lawyers argue that consolidation makes sense since the cases involve the same patents and similar infringement theories.
The MDL panel heard arguments Nov. 29 and has not yet ruled on the motion.
Regardless of what the panel decides, it is poised to assume a greater role in patent cases. The rise is the combined result of the AIA's limits on joinder and recent Federal Circuit case law making it easier to transfer cases out of the notoriously sticky Eastern District of Texas.
More filings against individual defendants means more cases scattered to multiple jurisdictions and more district judges potentially ruling on the same complex and technical patents. It all adds up to a sure recipe for pretrial consolidation as an MDL, said lawyers monitoring the trend.
